Shah v Malkan & another

Court of Appeal, at Mombasa July 29, 1994

Kwach, Omolo & Akiwumi JJ A

Civil Appeal No 22 of 1994

(Appeal from the orders of the High Court of Kenya at Mombasa  (Mr Justice ICC Wambilyangah) dated 17th August, 1983 and 3rd September, 1993 in Civil Case No 406 of 1993)

Civil Practice and Procedure - injunction - discretion to grant or refuse - circumstances in which the Court of Appeal can interfere with the discretion of the High Court judge to grant or refuse an injunction.

Landlord and Tenant - tenant law - notice to terminate a controlled tenancy on the ground that the landlord intends to occupy the land for a period not less than twelve months - landlord changing his mind to sell the premises after being granted occupation - whether notice was fraudulent.

Jurisdiction - Business Premises Tribunal matters - whether the High Court has jurisdiction to issue declaration of matters decided by the tribunal.

The appellant, who was the respondents’ landlord, served the latter with notice to vacate his premises on the ground that he (the landlord) wanted to occupy it for a period of not less than twelve months, for the purposes of conducting a business. The respondent unsuccessfully challenged the notice in the Business Premises Tribunal which upheld the notice and ordered the respondent to vacate. His subsequent appeal to the High Court too was unsuccessful.

One week before they were forced to vacate the suit premises, the respondents brought a fresh suit claiming that the appellant had misrepresented to the tribunal that he wanted to occupy the premises while the real intention was to sell it. He thus argued that because of the disclosed intention to sell the premises, the appellant’s original notice to terminate the tenancy was null and void ab initio and that the appellants had acted mala fides and perjured themselves before the Tribunal.

The respondents therefore sought a declaration that the notice by the defendants was invalid and that the tenancy relationship was still valid.

The High Court, after hearing them on an interlocutory application,

granted the respondent an interim injunction pending adjudication of the claims in his new suit.

Held:

1.The decision to grant or refuse an injunction is an exercise of discretion by the judge hearing the matter and the circumstances in which the Court of Appeal will interfere with a judge’s exercise of discretion are now well settled.

2. The Court of Appeal will not interfere with exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted in matters on which it should not have acted or it has failed to take into condisderation matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.

3. It is true an appeal was still pending in the High Court but no evidence was received in the appeal from which it could be inferred that the appellants lied to the judge who heard the appeal. If any lying was to be proved, it must be found in the record of the proceedings of the tribunal.

4. The trial judge did not have the record before him. Nor can it be seriously contended that the appellant should have told the High Court that they had changed their mind and intended to sell the property.

5. All that a landlord in these circumstances is required to do is to show that he intends to occupy the premises for his own purposes for a period of not less than twelve months.

6. More than three years had elapsed by the time the notice to sell appeared, In the circumstances, the Court was unable to see that there was a prima facie case with a probability of success.

7. The High Court has jurisdiction to issue a declaration in respect of matters decided by the Business Premises Tribunal.

8. Certiorari which is a remedy available under judicial review may in particular circumstances of the matter before the Court not be applicable because that remedy can only issue where a tribunal has acted without or in excess of its jurisdiction; where it has not observed the Rules of Natural Justice or where there is an error apparrent on the face of the record.

Appeal allowed.

Cases

1. Mbogo & another v Shah [1968] EA 93

2. B E A Timber Co v Gill [1959] EA 463

Statutes

1. Landlord and Tenant (Shops, Hotels & Catering Establishments ) Act (cap 301) sections 4(2); 7(1)(d); 13

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 1, 2, 3, 9

Advocates

Mr Gautama for the Appellants

Mr Gatonye for the Respondents

Owano v Republic

Court of Appeal, at Mombasa July 18, 1994

Gachuhi, Omolo & Akiwumi JJ A

Criminal Appeal No 62 of 1994

(Appeal from a judgment of the High Court of Kenya at Mombasa  (Mr Justice ICC Wambilyanga) dated 8th June, 1994, in HCCRA No 537 of 1993)

Criminal law – narcortic drugs – possession of – drugs found in a room occupied by the appellant alone – whether the fact that the room was a public place displaced the presumption of possession.

Criminal Practice and Procedure – witnesses testifying that drugs were found among the appellants’ clothes – appellant choosing to remain silent – whether trial magistrate was wrong in believing the witnesses’ testimony.

The appellant was convicted on the evidence of two prosecution witnesses who were police officers and who arrested the appellant from a room he was occupying alone and from which drugs were found.

During the trial the officers testified how the drugs were found in the appellant’s room among his clothes. The appellant however did not cross-examine the officers on their testimony. The trial magistrate believed the police officer’s testimony and convicted the appellant.

His first appeal to the High Court was rejected and on second appeal it was argued on his behalf that the room being a public place there was no evidence that the appellant was the only occupant of the room.

Held:

1. There was evidence that the appellant was alone in the room. The heroin was found among clothes identified as belonging to the appellant. He heard the two police officers give that evidence but he elected to say nothing.

2. The accused was entitled to keep quiet but the magistrate was equally entitled to believe the evidence of the two officers and if that evidence was believed, it proved beyond a reasonable doubt that the appellant was the only person who could have possessed the drug.

Appeal dismissed.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Mr Magolo for the Appellant

Meo v Khalil & another

Court of Appeal, at Mombasa January 25, 1994

Gachuhi, Muli & Tunoi JJ A

Civil Appeal No 5 of 1993

(Appeal from judgment of the High Court of Kenya at Mombasa  (Mr Justice J F Shields) dated 12/9/1990 in  HCCC No 323 of 1987)

Damages – foreign currency – the appropriate time for conversion of Kenya shillings into foreign currency.

Damages – trial court awarding damages without taking into account observations made by a doctor during a second medical examination - damages awarded at variance with the report – whether Court of Appeal can interfere.

The appellant sustained injuries as a result of a road traffic accident and sued the respondent for compensation for her injuries.

At the conclusion of the trial in the High Court, the Court awarded among others Kshs 250,000/- for injuries sustained and special damages in the sum of Kshs 60,750/- and 9,604,600 Italian Lira. The judge fixed the date of conversion of the foreign currency to be the date of the accident.

The appellant not being satisfied with award of the High Court, appealed.

Held:

1. Considering the time factor between the date of accrual of damages, the filing of the suit and the time of obtaining judgment and possible appeal and time for execution, the appropriate date for making payment would be the date towards the end of the road for determining the rate of conversion of foreign currency with local currency. In the Court’s view the appropriate date for conversion was the date of payment.

2. For the Court of Appeal to interfere with the quantum of damages awarded by the trial court, the Court must be satisfied that either the judge in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that short of this, the amount awarded is so inordinately low or high that it must be a wholly erroneous estimate of damages.

3. The learned trial judge’s summing up of the condition of the appellant at the time of the trial may in his view, be correct but certainly at variance with the extent of the appellant’s injuries and condition at the time of second medical examination.

Appeal allowed.

Cases

1. Edilio v Khalil [1994] KLR___

2. Milliangos v George Frank (Textiles) Ltd [1976] AC 443; [1975] 3 All ER 801

3. Kemfro Africa Ltd t/a “Meru Express Services (1976) & another v A M Lubia & another [1987] KLR 27; [1982 - 1988] 1 KAR 727

4. Kililo, Anderson v Mbuni Transport Co Ltd Civil Appeal No 133 of 1991

Statutes

No statutes referred.

Advocates

Mr Kasmani for the Appellant

Mr Kariuki for the Respondents

Edilio v Khalil & another

Court of Appeal, at Mombasa January 21, 1994

Gachuhi, Muli & Tunoi JJ A

Civil Appeal No 117 of 1992

(Appeal from a judgment of the High Court of Kenya at Mombasa (Justice Shields) dated 12th September, 1990 in Civil Case Number 128 of 1989)

Damages – foreign currency – applicable exchange rate - Court’s awarding rate of exchange as at the time of accident–– whether appellant adequately compensated.

Letters of Administration – appellant obtaining letters of administration in Italy but not having the same sealed in Kenya – whether the party could can claim damages under the Law Reform Act – Section 77 Law of Succession Act.

The appellant sued the respondent in the High Court seeking damages under Fatal Accidents Act and Law Reform Acts for the death of his wife caused by an accident involving the respondent’s vehicle.

The High Court awarded damages in Italian Currency but ordered that the amount to be paid be computed on the basis of prevailing rate of exchange as at the date of the accident.

The Court however dismissed the appellant’s claim for damages under Law Reform Act as the appellant though issued with Letters of Administration of his deceased wife’s estate in Italy, the same had not been sealed in Kenya as required by section 77 of the Law of Succession Act (cap 160).

Held:

1. As regards the conversion date to be inserted in the claim or in the judgment of the court, the choice was between the date of action brought; the date of judgment; or the date of payment. Each had its advantages.

2. If the appellant were to be paid damages at the rate of exchange prevailing at the time of the accident, he would be very much at a loss and would not be adequately compensated.

3. Kenyan Courts are not restricted to giving judgments in local currency.

4. Unless the personal representative had obtained Letters of Administration of the estate in his name, he had no locus standi in a claim for the benefit of the estate of a deceased person

Cases

1. Owners of Steamship Celia v Owners of Steamship Volturno [1921] AC 544; [1921] All ER 173

2. Miliangos v George Frank (Textiles) Ltd [1976] 443; 3 WLR 758; [1975] 3 All ER 801

3. Troustik Union International & another v Jane Mbeyu & another [1993] KLR

Texts

McGregor, H (Ed) (1988) McGregor on Damages London: Sweet & Maxwell 15th Edn

Statutes

1. Law of Succession Act (cap 160) section 77

2. Law Reform Act (cap 26)

3. Fatal Accidents Act (cap 32)

Advocates

Mr Kasmani for the Appellant